Pg 16 Flashcards
What are exigent circumstances?
Warrantless entry can happen when there is a compelling need for official action and no time to get a warrant. This involves immediate threat of evidence being destroyed, a threat to the police officer or someone in a home, or imminent risk that the suspect will flee the scene.
What is the government’s burden with regard to exigent circumstances?
They must show that the activity was proper based on reasonable suspicion of exigent circumstances.
What is still needed even if exigent circumstances exist?
Probable cause. Exigent circumstances only release the officer from having to get a warrant, not from needing probable cause
If police officers improperly create or manufacture an exigency, does the exigent circumstances exception to a warrant still exist?
No, it disappears
What is the key to show a lack of exigency if someone is trying to argue that they didn’t need a warrant because of exigent circumstances?
Time. If the police investigate somebody for two days before they force entry, they had time to get a warrant
What is the test to determine if exigent circumstances apply?
Whether police had an urgent need or an immediate major crisis in performance of their duties and no time or opportunity to apply for a warrant
What are the three major categories of exigent circumstances that allow an exception from a warrant?
– imminent destruction of evidence
– risk of danger to the police or others
– hot pursuit of a fleeing felon
What is involved in imminent destruction of evidence as a subcategory of exigent circumstances as an exception to needing a warrant?
Needing a blood sample from someone under a DUI falls here because the passage of time will destroy the evidence.
If an offence is very minor and is not criminal and incarceration is not an option, can police rely on exigent circumstances to justify doing a warrantless search?
No
What is involved in the subcategory of exigent circumstances for risk of danger to police or others?
Police can enter a dwelling to give emergency aid or assistance to someone that they reasonably believe is in distress
If police enter a home because of an emergency and they find evidence of a crime, is that evidence admissible?
Only if the entry objectively came under the exigent circumstances exception
If circumstances viewed objectively justify a police officer’s actions under risk of danger to police or others, does it matter what their subjective motivation was for doing a search?
No
What is involved in a subcategory for exigent circumstances that allows for hot pursuit of a fleeing felon?
Consideration of:
- how serious the offence is
- if the suspect was recently thought to be armed
- if there is a clear showing of his guilt
- if there was a strong reason to believe he was on the premises
- if there is a likelihood he would escape if he is not swiftly apprehended
- if he is known to own a weapon or involved in criminal activity that involves easily disposed of evidence
Once the exigencies of an initial entry dissipate, what do the police need?
A warrant to do any further search
If an offence is serious such as murder, does that create an exigency to justify a warrantless search?
No
If police officers saw D go into a breezeway but they don’t know which apartment he entered, and they hear people scurrying and possibly destroying evidence, would that create an exigency for a warrant exception?
Yes, because waiting for a warrant could lead to imminent destruction of evidence
If a police officer that is engaged in lawful conduct contributes to an exigency, is that OK?
Yes. The problem comes if the police conduct was illegal
If police knock on the door does that create an exigency?
– some court say that the cop has enough for a warrant, so he shouldn’t knock on the door
– others say it doesn’t matter
Can police temporarily detain a suspect while they get a warrant?
Yes
If the police are called about a domestic dispute, and the wife answers the door and says that the husband has drugs on his nightstand but the husband will not consent to entry, is it OK for the police to detain the husband while they get a warrant?
Yes
If police believe that a violent crime victim is in the home, is that an exigent circumstance to search for him?
Yes
What is involved in the exception to a warrant for an administrative search?
Allows invasive searches that are done to maintain security in detention facilities. Invasive suspicionless administrative searches of arrestees are OK if they are done for the purpose of something besides law-enforcement. This can include things like cheek swabs for DNA.
Are strip searches of people in correctional facilities OK?
Yes, if they are reasonable to maintain security and if D is going into general population. If he’s not going into general population, that is probably not allowed
Are DNA swabs OK without a warrant?
Yes if they are routinely collected from arrestees and entered into databases
What is involved in consent which would allow a police officer not to need a warrant?
If the person voluntarily consents to a search, and he has the authority to consent, no warrant is needed as long as the search did not exceed the scope of the consent that was given
Is it possible for police to get consent to a search from a third-party?
No
What is the key to consent as an exception to a warrant?
The consent must be voluntary based on the totality of the circumstances
What are the things to ask when it comes to consent as an excuse not to have a warrant?
– Who is asking for the consent: one cop or many?
– How they are asking for it: threatening or polite, and they tell the person they can refuse?
– From whom are they asking for it: person with apparent or actual authority?
– What response did they get: denial, grant that is limited or general?
How is the scope determined when a police officer gets consent to search?
Based on the objective reasonableness of what a typical reasonable person would have understood by the exchange
After a police officer gets consent to search, when must the search occur?
Right away and it can only happen once
How do you determine if a person consented to a search voluntarily?
If it was not the product of duress or coercion that was either express or implied
Who has the authority to consent to a search?
The owner of property unless it is currently rented or leased, and non-owners that have a significant relationship to the property
If a police officer reasonably believes that voluntary consent to search was given, even if he is mistaken, is that consent valid?
Yes
If a police officer makes a mistake about whether the person that gave the consent to search had the authority to do so, is consent still valid?
Yes
What is the question to ask to determine whether someone gave consent for a search?
If the information available to the police at the moment would have led a reasonable person to believe that consent was proper. If a person has apparent authority, then consent is upheld
Do police need to give notice to a suspect of his right not to consent to a search?
No
In order for a third-party to consent to a search, what is required?
He must have common authority over the thing to be searched (such as mutual use and joint access)
If police enter by saying that they have a warrant, but the warrant is later defective, is the consent to enter negated?
Yes
What are things to consider to determine if someone gave consent to a search voluntarily?
What a reasonably innocent person would have done, considering:
– duress and coercion
– TOC
– tone of voice
– police say they can search no matter what
– police lying about a warrant
– age, intoxication, or mental capacity
– the presence of many cops and the display of weapons
– suspect already in custody which suggests that consent is not valid
– maturity, education, or emotional state
– initial refusal then consent requires an explanation for the change
– subsequent request after being denied
– nature of the suspect
– language abilities and cultural background
– demeanor of the police
– location and time of day
If the police pull you over for a traffic stop and ask to search your car and you say no, so then they say that they will hold you until a drug dog comes, so then you consent, is that consent valid?
No, because it was not voluntary
What does it mean that people are masters of their consent?
They can refuse or limit the nature or location of the consent and can withdraw consent at any time
If someone refuses to give consent for a search, does that give the police probable cause?
No
Can consent to search be modified partway through? Or withdrawn?
Yes
What are things that do not create a problem for consent?
– cops can threaten to seek a warrant
– consent can be through gestures
– if the person feels like the jig is up, that is not coercive
Are police allowed to misrepresent the reason for their search and still have valid consent from the person?
Yes. They can say they are looking for stolen jewellery but really they are looking for stolen money. But if the misrepresentation is so extreme that it deprives the suspect of the ability to make a fair assessment of his need to surrender his privacy, that is not valid. Like if the police enter saying there’s a gas leak
